No search of home without a search warrant State v. AKILAH N. MURPHY,

No search of home without a warrant State v.

AKILAH N. MURPHY,

Defendant-Appellant.

__________________________________

June 3, 2015

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A Union County grand jury returned an indictment against defendant Akilah N. Murphy charging her with fourth degree possession of marijuana, N.J.S.A. 2C:35-10a(3), third degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11), third degree possession of marijuana with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7, third degree possession of heroin, N.J.S.A. 2C:35-10a(1), second degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2), and third degree possession of heroin with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7.

Defendant moved to suppress the evidence seized by officers of the Plainfield Police Department from her apartment. At the motion hearing, defendant argued the information provided to the court to support the issuance of the search warrant was obtained by the police through an unconstitutional warrantless entry of her residence and thus irreparably tainted the fruits of this illegal search. Alternatively, defendant requested that the trial court conduct an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed.2d 667 (1978), to enable her to impeach the testimony of the police officer who provided the information relied on by the court to find probable cause for the issuance of the search warrant.

The trial court denied defendant's motion to suppress without conducting an evidentiary hearing. After reviewing the report of the incident, the motion judge determined exigent circumstances existed to justify the police officer's warrantless entry into defendant's apartment. Because he found the initial entry was lawful, the judge concluded "the subsequent, full search of that apartment was conducted pursuant to a valid search warrant, founded on probable cause."

Defendant thereafter negotiated a plea agreement with the State through which she pled guilty to second degree possession of heroin with intent to distribute and third degree possession of heroin with intent to distribute within 1000 feet of a school zone. The State agreed to recommend the court sentence defendant within the third degree range on both offenses. Pursuant to the plea agreement, the court sentenced defendant to an aggregate term of four years with an eighteen-month period of parole ineligibility.

On appeal, defendant argues the motion judge erred in finding there were exigent circumstances justifying the police officer's warrantless entry into her home. We agree. Based on the facts reflected in the police report authored by the officer who was at the scene, there were no constitutionally justifiable reasons for the officer to have entered defendant's home without a warrant. The search warrant that led to the discovery and seizure of the evidence against defendant was expressly and exclusively predicated on this unconstitutional warrantless entry of defendant's residence. Such a direct causal link also requires the suppression of the evidence gathered by the police pursuant to the search warrant.

I

We derive the following facts from the police report authored by Plainfield Police Officer B. Baber.¹ At approximately 10:45 a.m. on Wednesday, August 17, 2011, the Plainfield Police Department received a call reporting "a suspicious person who has been lingering in the area [of the 500 block of West 8th Street] for the last 5 days." Officer Baber indicated "the complainant did not believe he lived in the area." According to Baber, the caller described this person "as a black male with long dread-lock hair wearing a white t-shirt and blue pants with white stripes down the sides."

Baber drove to the area indicated by the caller in a marked patrol car "to check for the suspect." As he passed by a residence located in the 500 block of West 8th Street,² Baber saw three individuals in the driveway of this residence. A person sitting next to "a younger male" fit the caller's description. Baber continued to drive past the house, made a U-turn, and entered the residence's driveway. As he approached "the group" in his patrol car, the man who fit the caller's description, who was then standing, "ran into the residence." According to Baber, when he stepped out of the patrol car and approached the two remaining individuals, he "could detect a strong odor of burnt marijuana in the air."

Baber asked the two persons in the driveway if they knew the man "that just ran into the residence." Both of them answered "no." Baber noted in his report that at this specific point in time he "was unware if the group was currently involved in some illegal activity, and if other individuals [were] also in the apartment."³ Baber noted a "younger male"⁴ who was sitting on the stairs. Next to him "was a small bag of what appeared to be marijuana, two cell phones, and some cash." The second person was an adult. He told Baber he was a private physical instructor who was there waiting for a client.

Although Baber noted that "neither individual provided any information to me," he nevertheless believed that the individual who ran inside the building "may have entered the residence illegally." He thus requested "additional Officers to respond so I can conduct a search for this individual." We note that Baber did not provide any explanation for believing the individual who ran inside the building was illegally inside any particular residence.

The record does not disclose the precise number of officers the Plainfield Police Department dispatched in response to Baber's request; the record also does not indicate the time it took for these additional officers to arrive at Baber's location. Baber only mentioned in his report that a sergeant "secured the items that were found on the stairs" and later turned these items over to him.

We describe what transpired next by quoting verbatim from Baber's report.

Upon entering the residence I found that there was a second door that led into a common hallway that went to 9 other apartments and a basement. While other officers checked the common areas and the basement, myself and Lt. J.T. Plum continued to search the apartment. While entering the hallway that leads from the kitchen to the living room I found a burnt still smoldering cigar, commonly known as a "blunt." You could smell the odor of burnt marijuana coming from this cigar. While in the living room searching for this individual I could detect a strong odor of raw marijuana. Lt. Plum was checking a wall closet located in the living room and observed cash and what appeared to be narcotics. (See Lt. Plum's supplement for further [information].)

The rest of the apartment was searched for the individual with negative results. 

[(Emphasis added).]

Defendant arrived sometime after the Plainfield Police Department had entered and searched her home without a warrant. According to Baber, "[s]he appeared visibly shaken." She informed the officers that the only persons who resided in the apartment were herself and her child. Baber does not mention in his report whether defendant was asked if she knew anyone matching the description of the "suspicious man." 

At 2:30 p.m. that same day, a Union County Assistant Prosecutor presented the sworn testimony of Plainfield Police Detective Adam Green to a Union County Superior Court Judge in support of the State's application for a search warrant to complete the search of defendant's home. It is undisputed that Detective Green was not one of the officers who responded to Baber's request for backup. In fact, Green's testimony was based entirely on hearsay information he received from the officers at the scene. It is equally clear that Green's testimony was elicited by the Assistant Prosecutor through a series a leading questions that for the most part required Green to give the equivalent of a "yes" or "no" response.

Green's testimony deviated from Baber's account of events on several material details. For example, Baber indicated that the individual matching the description of the "suspicious person" was standing after Baber made the U-turn to approach the area where the three individuals were previously sitting; as Baber approached the group, the man "ran into the residence where he once was sitting in front of." By contrast, Green provided the following information in response to the prosecutor's question: "And upon [Baber] arriving to the area did the individual who matched that description immediately take off running into an apartment?" Green responded: "Yes he did." 

Baber indicated he "believed the individual that ran may have entered the residence illegally." However, Baber did not provide a rationale for his "belief" or explain how he was able to see the individual enter any particular apartment when he was standing outside the building at the time. Detective Green's testimony describing this event was materially different:

PROSECUTOR: And at that time, was the officer concerned that the individual [who] ran into the apartment may have not had a right to run into the apartment, correct?

GREEN: That is correct.

PROSECUTOR: And that is based upon the numerous home burglaries that have [taken] place within that area of Plainfield recently?

GREEN: That is correct.

PROSECUTOR: Did the patrol officer then proceed towards that apartment?

GREEN: Yes sir.

PROSECUTOR: And in fact he entered through a front doorway that led to a foyer, correct?

GREEN: That is correct. It's on the east side with a front foyer that leads directly into that apartment.

PROSECUTOR: And in that foyer, on the other side of that foyer, there is one door for the apartment, correct?

GREEN: Yes sir.

PROSECUTOR: So that individual could have only run into one apartment after he ran through that foyer, correct?

GREEN: Yes sir.

PROSECUTOR: And upon reaching the threshold of the apartment, did an officer also smell a strong odor of marijuana?

GREEN: Yes that is correct.

As the following question illustrates, through this series of leading questions the prosecutor also misrepresented the sequence of events that led Baber to request the assistance of additional officers:

PROSECUTOR: And so at that point, based upon the odor of raw marijuana, the fact that the individual ran into the apartment of which he may not have had a right to be in, did an officer then radio for back up and then enter that apartment with back up units?

GREEN: Yes he did. (Emphasis added).

This is not consistent with Baber's account of events. According to Baber, he requested additional officers "so I can conduct a search for this individual." His request for additional officers was not predicated on the odor of raw marijuana emanating from defendant's apartment. Based on Baber's report, all of the contraband the police officers discovered in defendant's apartment came from visual inspections and olfactory sensations the officers experienced after they had entered defendant's residence without a warrant.

Finally, Green testified that while searching the living room closet, Lieutenant Plum

immediately observed a large quantity of United States currency as well as a McDonald's bag which contained, inside of it, a freezer bag, a freezer dry bag that contained a significant amount of suspected marijuana.

PROSECUTOR: And that bag was actually opened, the officer didn't have to actually open the bag, that the bag was opened, he was able to observe those contraband items in that bag, correct?

GREEN: That is correct.

PROSECUTOR: And the illegality was immediately apparent to the officer, correct?

GREEN: Absolutely.

PROSECUTOR: And.

GREEN: Additionally he observed on the floor next to the United States currency a brown cardboard box which from my training, education and experience is found to be part of paraphernalia used to distribute CDS. Likewise underneath the brown box, in view, was a glassine, a new unused glassine wax paper fold.

PROSECUTOR: And the individual you described here under oath that ran into that apartment, was not found in that apartment, correct?

GREEN: No he was not.

Based on Green's testimony, the judge found probable cause to search defendant's apartment and issued the warrant. A search of defendant's apartment conducted that same day yielded a large quantity of illicit drugs.

II.

Against this record, defendant appeals raising the following arguments:

POINT I

THE JUDGE ERRED IN FAILING TO CONDUCT A HEARING ON WHETHER DETECTIVE GREEN KNOWINGLY OR RECKLESSLY PROVIDED FALSE STATEMENTS IN HIS SEARCH-WARRANT APPLICATION. IN ANY EVENT, THE APPLICATION FAILED TO PROVIDE PROBABLE CAUSE TO ENTER AND SEARCH MS. MURPHY'S APARTMENT.

POINT II

THE FOUR-YEAR PRISON SENTENCE, WITH AN 18-MONTH PERIOD OF PAROLE INELIGIBILITY, WAS MANIFESTLY EXCESSIVE, BECAUSE MS. MURPHY HAD NO PRIOR CONVICTIONS, HAD STABLE EMPLOYMENT, AND HAS TWO CHILDREN IN HER CARE.

The right to be protected against unlawful or unwarranted entries by the police into one's home is one of the most precious and fundamental liberties guaranteed by both the national and the State's Constitutions. The first clauses of both the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution, provide that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."  U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7.

Writing for a unanimous Court, Chief Justice Rabner has recently reaffirmed and explained in detail the principles that must guide judicial review of a warrantless entry by the police of a person's home.

[T]the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.

The unique status of the home has been recognized for centuries. And throughout our nation's history, one of our most protected rights . . . has been the sanctity and privacy of a person's home. Those interests are entitled to the highest degree of respect and protection in the framework of our constitutional system.

The United States Supreme Court recently reaffirmed the heightened status of the home under the Constitution. The Court observed that when it comes to the Fourth Amendment, the home is first among equals and stands at the Amendment's very core.

This Court also recently emphasized the preeminent position of a private residence when it held that the community-caretaking doctrine, standing alone, could not justify a warrantless search of a home.

The law, thus, expresses a clear preference for police officers to secure a warrant before entering and searching a home. A warrantless search of a private dwelling is presumptively invalid, and calls for particularly careful scrutiny. To overcome that presumption, the State must show that a warrantless search falls within a recognized exception to the warrant requirement.

[State v. Wright, ___ N.J. ____, ____ (2015) (slip op. at 21-22). (Internal citations omitted).]

Because both our federal and constitutional jurisprudence has expressed an explicit preference for the police to secure a warrant before searching a person's home, a warrantless entry of a home is presumed invalid absent the State proving by a preponderance of the evidence that the search falls within one of the recognized exceptions to the warrant requirement.  State v. Lamb, 218 N.J. 300, 315 (2014). See also Riley v. California, ____ U.S. _____,_____, 134 S. Ct. 2473, 2482, 189 L. Ed.2d 430, 439 (2014). 

In State v. Bolte, 115 N.J. 579, 585-86 (1989), our Supreme Court noted that "exigent circumstances in conjunction with probable cause may excuse police from compliance with the warrant requirement." However, the nature of the underlying offense determines the applicability of the "exigent circumstances" exception to the warrant requirement, especially when the matter concerns the warrantless entry of a home. The exigency must be rationally connected to a police investigation of a serious or potentially dangerous criminal activity, and the circumstances must lead a reasonable police officer to conclude that delaying in order to obtain a warrant would carry an unreasonable risk that the evidence would be destroyed. The key to this analysis is finding evidence that indicates a police officer had an "objectively reasonable basis to believe that prompt action is needed to meet an imminent danger[.]"  State v. Edmonds, 211 N.J. 117, 133 (2012) (citation omitted).

A warrantless entry into a home may be constitutionally permissible in a case in which the police officer is in hot pursuit of a suspect who the officer reasonably believes poses an immediate threat to himself or members of the public.  Bolte, supra, 115 N.J. at 584. However, the "hot pursuit" must be supported by probable cause to believe the person being pursued has committed a serious offense. Stated differently, "the exigencies of the situation must [make that course] imperative." Ibid. Thus, our Supreme Court has upheld the warrantless entry of a home by police officers who were in hot pursuit of an armed suspect who entered the residence to evade capture.  State v. Walker, 213 N.J. 281, 292 (2013), (citing State v. Hutchins, 116 N.J. 457, 464 (1989)).

Conversely, our Supreme Court made clear in Bolte that the police cannot rely on the exigent circumstances or hot pursuit exceptions to the warrant requirement to justify a warrantless entry of a home to investigate minor offenses or apprehend a suspect who may have committed a minor offense. Justice Stein explained this principle in Bolte by adopting the admonitions of the United State Supreme Court in Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S. Ct. 2091, 2099, 80 L. Ed.2d 732, 745 (1984): "[I]t is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor."  Bolte, supra, 115 N.J. at 592.

Here, the State argued Baber and the other Plainfield Police Officers' warrantless entry into defendant's home was "objectively reasonable" because their actions were "in response to exigent circumstances, i.e., to prevent the fleeing man from eluding arrest, and to prevent the destruction of evidence." The motion judge accepted the State's argument.

[T]he court finds that exigent circumstances did exist, and justified the officers' initial entry of the apartment. Most significantly, Detective Green's testimony established that the officers were in hot pursuit of an individual who had just immediately fled into the premises of [describes the address]. Here, during a response to a community call regarding a suspicious individual, officers observed an individual matching the description provided by the caller. That individual fled into [describes the address] upon seeing a marked police vehicle's stop near his location. Secondly, Detective Green testified that the officers were concerned about whether the individual had permission to enter the residence. He furthermore testified about a recent incidence of home burglaries in the immediate area. As such, the immediacy of the action would indicate a high degree of urgency with regards to any police action in pursuit of the individual.

The motion judge also found "the police⁵ had probable cause to believe an individual who had just committed a narcotics offense had fled into the apartment." 

These findings are not supported by the record as described by Baber in his report. Baber did not see the man who matched the caller's description and ran inside the apartment building to commit a serious narcotics offense. Viewing the facts in the light most favorable to the State, Baber may have had probable cause to believe the individual who ran inside the building was in constructive possession of "a small amount of marijuana." This would constitute a disorderly persons offense under N.J.S.A. 2C:35-10(a)(4). Such a minor offense does not constitute grounds to justify the warrantless entry of defendant's home.  Walker, supra, 213 N.J. at 292. 

The record also shows Baber was not in a position to observe where the suspicious man ran once he entered the building. His focus on defendant's apartment as the place where the man allegedly entered is therefore unsupported by evidence. Green's testimony expounding on Baber's account on this point is not supported by competent evidence because Green did not disclose the basis for this material deviation from the description provided by the officer at the scene.

Under the totality of the circumstances we have described, the action taken by the Plainfield Police Department seems unwarranted and overzealous from its inception. A police officer was dispatched to the area where defendant resided based only on an anonymous call reporting a "suspicious person who has been lingering in the area for the last 5 days and the [caller] did not believe he lived in the area." Green described the area where defendant's apartment is located as a "quiet residential block," where you would not see people "milling about." When Baber arrived, he immediately focused his attention on the man who matched the caller's physical description.

However, nothing about the information provided by the caller was objectively suspicious. We do not know why the caller believed the man did not live in the area. We do not know what the caller meant by "lingering in the area." The only specific information the caller provided to the police was the man's race, hairstyle, and clothing. Without more, a citizen should not be labelled "suspicious," subject to law enforcement investigation. By Baber's own description, he only saw a man run into an apartment building at the sight of a marked police vehicle.⁶ Yet despite the absence of any reasonably objective basis to believe a serious crime may have been committed, Baber proceeded in a manner that ultimately led him to enter defendant's residence without a warrant. 

Accepting as truthful Baber's account of what transpired up to this point, none of this is objectively "suspicious." Under these circumstances, Baber did not have any objectively reasonable grounds to believe any illegal activity had occurred. Two men and a young boy sitting on the steps of a multi-family building is not inherently suspicious; "milling about" in the middle of a summer day should not be viewed by any reasonable police officer as indicative of criminality or untoward conduct. However, before he allegedly detected the odor of burnt marijuana in the air, Baber believed these facts were sufficient to constitute suspicious behavior.

We hold that the Plainfield Police Officers who entered defendant's apartment on August 17, 2011, without a search warrant violated defendant's rights against unreasonable searches and seizures under both the Fourth Amendment of the Constitution of the United States and Article I, Paragraph 7 of the New Jersey Constitution. The facts known to these officers at the time they entered defendant's home without a warrant were insufficient, as a matter of law, to constitute exigent circumstances and did not establish probable cause that the man who allegedly entered defendant's residence had committed a serious offense and was attempting to elude capture. Any and all evidence seized by the State from this unlawful entry into defendant's residence is suppressed and cannot be used by the State to prosecute defendant on the charges contained in this indictment.

We further hold that the search warrant issued by the trial court on August 7, 2011 was based on facts directly gathered by the Plainfield Police Department from the unconstitutional warrantless entry of defendant's residence and search conducted thereafter. As such, any and all evidence seized by the State from the execution of this search warrant is suppressed and cannot be used by the State to prosecute defendant on the charges contained in this indictment.

Reversed and remanded. We do not retain jurisdiction.

1  Officer Baber's first name is not disclosed in the record.

2  The record includes the precise address of the residence. We have opted not to include the address in this opinion to protect the privacy of the residence.

3  This reference to other individuals potentially inside "the apartment" does not logically flow from Baber's description of events up that point. Baber did not indicate in his report seeing the "suspicious man" go into any particular apartment when he ran inside the residence. In fact, Baber specifically states he was outside in the driveway area where the group was sitting on the steps of the residence when he saw the man run inside the building.

4  Baber's report identified the "younger male" by name and date of birth. This revealed he was, at the time, an eleven-year-old boy. We will thus not disclose his name or any other personal information. 

5  In this reference to "police" we presume the judge was referring to Baber since he was the only officer who actually saw the suspect.

6  Detective Green described the building where defendant's apartment was located as a three story, multi-family apartment building.

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Gun permit denied based on mental health issue

Gun permit denied based on mental health issue

IN THE MATTER OF THE APPEAL OF

THE DENIAL OF THE APPLICATION

BY P.M. FOR A FIREARMS

PURCHASER IDENTIFICATION CARD AND

PERMIT TO PURCHASE A HANDGUN.

April 8, 2015

Submitted March 18, 2015 – Decided 

Before Judges Maven and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PER CURIAM 

P.M. appeals from a January 27, 2014 Law Division order upholding a municipal police chief's denial of his application for a New Jersey Firearms Purchaser Identification Card (FPIC) and a handgun purchase permit (handgun permit or permit). For the reasons that follow, we affirm. Our decision is without prejudice to P.M.'s right to reapply for a FPIC and handgun permit in the future, based on his circumstances at the time of that application.¹

I.

P.M.'s initial application was dated May 19, 2010. P.M. answered "no" to the following questions on the application: 

(24) Have you ever been confined or committed to a mental institution or hospital for treatment or observation of a mental or psychiatric condition on a temporary, interim, or permanent basis? If yes, give the name and location of the institution or hospital and the date(s) of such confinement or commitment. 

(26) Have you ever been attended, treated or observed by any doctor or psychiatrist or at any hospital or mental institution on an inpatient or outpatient basis for any mental or psychiatric condition? If yes, give the name and location of the doctor, psychiatrist, hospital or institution and the date(s) of such occurrence. 

A background investigation was then conducted by Detective Sergeant John Mazure. The investigation revealed that P.M. had been voluntarily admitted to the University of Medicine and Dentistry of New Jersey (UMDNJ) for mental health reasons from December 29, 2007, until January 4, 2008. On December 16, 2010, the Police Chief denied P.M.'s application. The reasons given for denial were P.M.'s "medical, mental or alcoholic background," and "falsification of application." 

On December 29, 2010, P.M. filed an appeal to the Law Division, which he withdrew without prejudice on January 31, 2011. He then applied for, and obtained, an order expunging the record of his admission to UMDNJ.² The September 1, 2011 expungement order recited "that pursuant to N.J.S.[A.] 30:4-80.11, . . . the commitment shall be deemed not to have occurred and [P.M.] may answer accordingly any questions relating to its occurrence." 

P.M. then filed a second application for a FPIC and a handgun permit on April 24, 2012. In this second application, P.M. again answered "no" to question 24, and referenced the expungement order which he attached to the application. P.M. answered "yes" to question 26, and referenced an attached psychiatric evaluation report of Anthony Todaro, Ph.D., dated February 9, 2012. On June 8, 2012, the Police Chief denied the second application, citing the same grounds as the initial denial. 

On December 14, 2012, P.M. appealed this second denial to the Law Division. The State sought a determination whether the expunged records that served as the basis of the denial would be unsealed for use by the State at the appeal hearing. After hearing oral argument, the court, on November 8, 2013, ruled that the expunged mental health records would be unsealed for this limited purpose. P.M. does not appeal this determination.³

The court conducted a testimonial hearing on P.M.'s second appeal on January 24, 2014. Mazure, who had investigated the application, summarized his findings. Through Mazure's testimony, the State introduced in evidence P.M.'s UMDNJ discharge summary, which reflected that P.M. voluntarily admitted himself to that facility on December 29, 2007, and was discharged on January 4, 2008. 

According to the UMDNJ record, upon admission, P.M., a forty-one-year-old social worker, reported that he was depressed and was experiencing stress resulting from a failed marriage. He had been seeing a psychotherapist weekly, and was also attending marriage counseling. According to P.M.'s wife, he had received therapy on an outpatient basis at a hospital about twenty years earlier.

P.M.'s wife informed UMDNJ staff that, two days earlier, he told her "I'll be dead in [two] days." She then advised P.M. to call his therapist. P.M. responded, "I hope I live through the next [two] days but I probably will not. I will not try hard either." 

P.M. initially denied any suicidal ideation. However, that changed when he was confronted with an e-mail he sent his wife the previous day. According to the evaluator, in that e-mail, P.M. wrote:

"I know I love you more than life itself. My life is not much now. I am worth more deceased." He then said "if something happens, you are the sole beneficiary of my policies" and he named his American Legion and State Life insurance policies. [P.M.] then wrote "what you should do is get a copy of my DD-214 discharge papers. There is a copy in the closet or personnel office at work. [J.O.] is the person you should see. She's very nice. With this document you can have my headstone and burial at Arneytown New Jersey Military Cemetery. You can do what you want with the flag. It's in South Jersey, so you will not have to visit." [P.M.] then went on to write "I have sent you the original documents. It is durable power of attorney that guides you and tells you my wishes if something is to happen to me. I do not want feeding tube or resuscitation, no ventilator, no tracheotomy, no e[x]traordinary heroic measure[s] are to be taken. Please do not let the doctor convince you that I will starve a painful death without a feeding tube." [P.M.] also said "the second part of the document gives access to finances. I prefer you. I might have an alternate, maybe [M.] or [J.]. They don't know. Hopefully they'll follow the paper."

P.M. then agreed to be admitted to the hospital for inpatient psychiatric therapy. His diagnosis on admission was depressive disorder. 

P.M.'s wife reported that his father and brother had a history of alcoholism, and that P.M.'s mother also had a history of mental illness. P.M's wife further advised that P.M. "goes hunting with [his] brother" and "has guns that he keeps at his brother's home because [she] does not allow them in the home." 

With respect to substance usage, the discharge summary indicates that P.M. had a history of alcohol use ten years ago, while further noting "details unknown; [patient] is vague." P.M. stated that he "does not currently drink." P.M. tested positive for opiates and "benzos," and he reported that he used vicoprofen and valium that were prescribed by his primary care physician. The report further indicates, "[patient] was already taking Lexapro [at] the time of admission and then later increased to 20mg. [Patient] was suspected of abusing pain pills and benzo althrough (sic) patient denied it." 

P.M.'s diagnosis on discharge from UMDNJ was "depressive disorder NOS" and "anxiety disorder NOS." His prognosis was described as "fair," and he was directed to continue with treatment and to take twenty milligrams of Lexapro daily. 

The Police Chief testified that P.M.'s first application was denied because "[t]here was a mental illness incident," and also because P.M. had not answered the questions on the application properly. The Chief determined that these factors disqualified P.M. from obtaining a FPIC and handgun permit under N.J.S.A. 2C:58-3. The Chief later denied P.M.'s second application due to "[p]retty much the same circumstances." Expanding, he explained that his denial was "[b]ased on what was in the report from [UMDNJ]." On cross-examination, the Chief indicated that he had no knowledge whether P.M. had any present mental health condition. 

P.M. testified that he was forty-seven years old, and serves as a director of social services at a facility where he supervises six staff members. He testified that he has no history of criminal, disorderly persons, or DWI convictions, is not an alcoholic nor drug-dependent, and has never had a restraining order issued against him. According to P.M., at the time of his admission to UMDNJ he was homeless and experiencing marital strife as a result of having an extra-marital affair. 

P.M. explained that he was confused when he answered the questions on the first application, since he had not been committed to UMDNJ but rather was admitted voluntarily. He later had that record expunged, and stated that he presently has no suicidal ideations nor is he continuing to receive psychiatric care. In response to a question from the court, P.M. advised that he wanted the guns for hunting and target practice, activities that he enjoyed participating in with his father as a youngster. 

P.M. also introduced into evidence Dr. Todaro's February 9, 2012 psychological evaluation report, as well as a psychiatric evaluation report of Edward Baruch, M.D., who had evaluated P.M. on February 27, 2013. Neither expert testified at the hearing. 

Dr. Todaro's evaluation of P.M. occurred on May 5, 2011, and January 15, 2012, and included eight hours of psychological evaluation, three hours of clinical interview, and three hours of analysis and review of records. Dr. Todaro noted that P.M.'s "[g]eneral symptomatic distress levels . . . are very low, indicating either a true absence of psychological distress or a highly defensive posture." The report makes no mention of P.M.'s UMDNJ admission. Dr. Todaro characterized P.M.'s prognosis as "[v]ery good to excellent." He concluded his report by expressing the opinion that "[i]t can be stated with reasonable psychological certainty that [P.M.] is safe to handle firearms and does not present a danger to himself or others." 

In preparing his report, Dr. Baruch relied on information he obtained from P.M., as well as his review of Dr. Todaro's report and the UMDNJ records. P.M. reported that he had not been in treatment since "sometime in 2008," and "that he decided to discontinue therapy once he and his therapist felt he reached his treatment goals." P.M. further advised Dr. Baruch that he had not taken Lexapro in over two-and-a-half years, and that "he decided to come off the medication under the supervision of his doctor." P.M. denied experiencing any resurgence in depressive symptoms since he discontinued the medication. 

Dr. Baruch concluded that P.M. does not currently display any evidence of psychiatric symptoms, nor "suffer from any disability or disease that would interfere with or handicap him in the safe handling of firearms." He opined, "within a reasonable degree of medical certainty, that [P.M.] can possess and handle firearms safely, without a risk of danger to himself or others." 

In an oral opinion placed on the record on January 24, 2014, Judge Edward Jerejian considered the totality of P.M.'s mental health history, including P.M.'s 2007-08 hospitalization. The judge also considered P.M.'s "acknowledgement of a history that dates back; counseling; medications; and, ultimately, a diagnosis of depressive disorder, anxiety disorder." The judge noted that, following his hospitalization, P.M. underwent additional treatment, and continued on his medications until 2010. 

The judge then weighed this history against the opinions expressed in P.M.'s experts' reports. The judge rejected Dr. Todaro's opinion, stating: "I don't find Dr. [Todaro's] [e]valuation helpful. I mean, I don't know how you can possibly have a psychological evaluation of this matter without discussing the 2007 hospitalization." As for Dr. Baruch's subsequent examination, the judge noted that while he did discuss P.M.'s hospitalization, Dr. Baruch based his evaluation "on mostly self-[re]porting from P.M. and Dr. [Todaro's] [e]valuation." 

Ultimately, Judge Jerejian found that giving P.M. a FPIC and a handgun permit would be contrary to the public welfare.  N.J.S.A. 2C:58-3(c)(5). The judge reasoned: 

But, certainly, again, aside from his legal issues, the [c]ourt in considering his overall mental health picture – I'm not convinced that enough time has elapsed. I view his hospitalization for depression not as being remote[,] [e]ven though 2007 is now a little more than six years ago when he was hospitalized. 

He was on medications until 2010. He was under treatment until 2008. He stopped. He was seeing a clinical social worker. He had a serious situation leading to a hospitalization of, at least, six days. His dosage was increased. He had [] certainly, clear signals of suicide ideation. 

As a result, . . . the burden[] [has] been met by a preponderance of the evidence that issuance of these permits would not be [in] the public health, safety, or welfare. I know it's not a bar to, perhaps, apply in the future when it's more remote; there's more of a history.

But these . . . were medical mental health diagnoses which now are completely un-counseled and untreated. And the [c]ourt feels that, as a result, the burden has been met. So, I'm going to affirm the [C]hief's denial. 

II.

On appeal, P.M. raises the following points: 

POINT 1: APPELLANT SUFFERS FROM NO STATUTORY DISQUALIFIER TO FIREARM POSSESSION UNDER  N.J.S.[A.] 2C:58-3C, AND THE COURT BELOW ERRED BY NOT ACCEPTING UNREBUTTED CERTIFICATIONS OF TWO DOCTORS THAT APPELLANT IS SAFE FOR THE HANDLING OF FIREARMS AND NOT A DANGER.

POINT 2: APPELLANT SHOULD NOT BE DENIED HIS FUNDAMENTAL, INDIVIDUAL, CONSTITUTIONAL RIGHT TO KEEP ARMS. 

We find P.M.'s contentions of error on appeal do not warrant extended discussion in a written opinion.  See R. 2:11-3(e)(1)(E). We add the following comments. 

The findings by a trial judge are "binding on appeal when supported by adequate, substantial and credible evidence."  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We will "'not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'"  Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Nevertheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). 

The hearing in the Law Division is de novo, which "'contemplates introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court.'" In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003) (quoting Weston v. State, 60 N.J. 36, 45 (1972)), certif. denied, 179 N.J. 310(2004). Hearsay is admissible, but there must be sufficient legally competent evidence to support the court's findings. Weston, supra, 60 N.J. at 50-51. "The chief has the burden of proving the existence of good cause for the denial by a preponderance of the evidence."  Osworth, supra, 365 N.J. Super. at 77.

N.J.S.A. 2C:58-3(c) directs the issuance of a permit to purchase a handgun and a firearms purchaser identification card to any person of "good character and good repute" who is not subject to any of the enumerated exceptions. The statute provides "[n]o handgun purchase permit or firearms purchaser identification card shall be issued: . . . [t]o any person where the issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3(c)(5). 

"[T]he statutory design is to prevent firearms from coming into the hands of persons likely to pose a danger to the public." State v. Cunningham, 186 N.J. Super. 502, 511 (App. Div. 1982). The broad catch-all provision of section (5) relates "'to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest.'"  Osworth, supra, 365 N.J. Super. at 79 (quoting Burton v. Sills, 53 N.J. 86, 91 (1968)).

We reject P.M.'s contention that the trial court erred by substituting its own opinion for that of P.M.'s medical professionals. Contrary to P.M.'s argument, the court was not required to blindly accept P.M.'s experts' opinions. With respect to the opinions of qualified experts, "[a] trial court is free to accept or reject the testimony of either side's expert," in full or in part.  Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002). See also Model Jury Charge (Civil), 1.13 and 1.13(B), "Expert Testimony" (1995). 

Here, although neither expert testified, Judge Jerejian carefully analyzed each of their evaluation reports. The judge rejected Dr. Todaro's opinion, as it completely failed to consider P.M.'s UMDNJ hospitalization. The judge clearly also gave only limited weight to Dr. Baruch's report, as he found it relied heavily on P.M.'s self-reporting and Dr. Todaro's deficient report. 

The UMDNJ report demonstrates that, upon discharge, P.M. was to continue treatment and take twenty milligrams of Lexapro daily. P.M. advised Dr. Baruch that he discontinued his treatment "sometime in 2008," and that he "decided to come off the medication under the supervision of his doctor." However, the record contains no indication that either Dr. Todaro or Dr. Baruch reviewed the records of P.M.'s treating therapist to confirm the accuracy of P.M.'s representations when formulating their respective opinions that P.M. is presently fit to handle firearms. Judge Jerejian carefully explained the reasons that he rejected or only gave limited weight to the reports of P.M.'s experts, and why their opinions did not negate the concerns raised about P.M.'s fitness when viewed through the prism of his entire mental health history. 

We decline to second-guess the judge's conclusion that granting P.M.'s application "would not be in the interest of the public health, safety or welfare."  N.J.S.A. 2C:58-3(c)(5). Cf. State v. Cordoma, 372 N.J. Super. 524, 535-36 (App. Div. 2004) (upholding the trial court's N.J.S.A. 2C:58-3(c)(5) disqualification finding because the court "had a rational basis to question the defendant's fitness to possess a firearm"). Thus, in this case the denial of a FPIC and handgun permit under the N.J.S.A. 2C:58-3(c)(5) disqualification was established by a preponderance of the evidence. 

Addressing P.M.'s next point, we find no merit in his constitutional argument. We have recently explained that:

[T]his court has addressed, and rejected post District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed.2d 637 (2008), [the] argument that the public health and safety exception of N.J.S.A. 2C:58-3(c)(5) is unconstitutionally vague.  In re Dubov, 410 N.J. Super. 190, 196-97 (App. Div. 2009). We do not find that McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 3026, 177 L. Ed.2d 894, 903 (2010), alters our thinking, as it did not address due process issues but merely extended Heller's holding to the States. "We cannot conclude that the [Second] Amendment or the Court's recent decisions require this State to dismantle its statutory scheme addressing the risks of misuse and accidental use [of firearms] in public places devised long ago and developed over many years. This scheme is crafted to burden the exercise of the right to use handguns for lawful purposes as little as possible, without abandoning this effort to maintain order and safety in public places."  In re Wheeler, 433 N.J. Super. 560, 617 (App. Div. 2013) (addressing constitutionality of the State's carry permit law).

[In re Winston, 438 N.J. Super. 1, 10 (App. Div. 2014) (second and third alterations in original), certif. denied, __ N.J. __ (Feb. 2, 2015).] 

Affirmed. 

1  In reaching this conclusion, we do not imply any view as to the merits of a future permit application, should P.M. choose to submit one. 

2  N.J.S.A. 30:4-80.8 provides that a person "may apply to the court" for the expungement of his or her medical records if he or she 

has been . . . committed to any institution or facility providing mental health services, or has been determined to be a danger to himself, others, or property, or determined to be an incapacitated individual as defined in N.J.S.[A.] 3B:1-2, by order of any court or by voluntary commitment and who was . . . discharged from such institution or facility as recovered, or whose illness upon discharge, or subsequent to discharge or determination, is substantially improved or in substantial remission.

3  See In re J.D., 407 N.J. Super. 317, 327-28 (Law Div. 2009) (holding that applicant for FPIC and handgun permit is required to waive privilege of expungement or, alternatively, withdraw the application).

Last minute evidence by State improper State v P.S.

Last minute evidence by State improper State v P.S.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. P.S.,

Defendant-Appellant.

______________________________________________________

March 26, 2015

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

Before Judges Fisher, Nugent and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-10-1757.

Bastarrika, Soto, Gonzalez & Somohano, attorneys for appellant (Jerard A. Gonzalez,of counsel; Jane M. Personette, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal of his conviction by a jury of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), of G.D. (hereafter Grace, a fictitious name) – which occurred in 2006 when Grace was approximately eleven years old – and one count of third-degree endangering, N.J.S.A. 2C:24-4(a), defendant argues, among other things, that the trial judge erred in admitting the State's photographs – taken the same day the defense rested – of the area in question. Because we agree the judge abused his discretion in permitting this rebuttal evidence – particularly when the rebuttal witness's testimony about the photographs acknowledged numerous changes to the area in the intervening years – we reverse.

The evidence adduced at a trial in 2009¹ revealed that in 1997 Grace's family, consisting of her parents and her twin sister, moved to Ridgewood. Defendant, his wife, and their two sons, resided in the house next door. Grace and one of defendant's sons were of the same approximate age and often played together in defendant's yard because it contained a basketball court, a rope swing, puppies and chickens. At one point, to give the children safer access to and from his yard, defendant cut a hole in his chain link fence that separated his property from Grace's family's yard, eliminating the need for the children to reach his yard by walking along a busy street.

The two families were friendly, and Grace's mother neither observed nor suspected any problem until May 2006, when Grace began suffering from headaches and fatigue.² According to her mother, Grace also exhibited physical symptoms that suggested she was having her first period, and she took Grace for a medical examination during which Grace revealed that defendant had touched her vagina through her clothing.³ Grace appeared uncomfortable discussing this with a male physician, so a female physician spoke with and examined her. Grace provided further detail to the female doctor, who, although finding no objective signs of injury and concluding Grace was probably experiencing her first period, suggested Grace and her mother speak to the police. The investigation that followed led to defendant's indictment.

At trial, although the State called five other witnesses, only Grace provided direct evidence of the alleged crimes.⁴The prosecutor conceded there was a "lack of physical and scientific evidence," and "although there were [others] present in and around the area" when the alleged abuse occurred, the jury would not hear "eyewitness testimony." In short, Grace was the source of the evidence provided by the other witnesses.

Grace testified that defendant first improperly touched her when she was in the third grade, estimating such incidents occurred approximately twenty times over a three-year period either inside defendant's home or in his backyard. Grace acknowledged no one else was present when defendant touched her. She provided specific incidents of abuse that occurred inside defendant's house and others that occurred outside, near a truck, a doghouse and a chicken coop in the yard. Through effective cross-examination, defense counsel revealed a number of inconsistencies in Grace's recollection of these events.

The jury also heard testimony from witnesses called by the defense. A.C., a neighbor, who tended to be home all day, had a kitchen window with a view of defendant's backyard. A.C. testified she had never observed Grace alone with defendant. A.C. also had tenants, one of whom testified she could see part of defendant's backyard from her window; she too testified she had never seen defendant alone in the yard with Grace. Defendant's wife provided similar testimony.

When the defense was about to rest near the end of this nine-day trial, the prosecutor advised the trial judge of his intention to "mount a very . . . narrow one witness rebuttal" to respond to the evidence offered by the defense regarding the configuration and appearance of defendant's backyard. Grace was permitted, over defendant's objection, to resume the witness stand, and she testified about a series of photographs taken that morning by a member of her family. 

Defendant was convicted and, on December 18, 2009, sentenced to an aggregate seven-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appeals, arguing:

I. THE INTRODUCTION BY THE STATE, DURING THE REBUTTAL PHASE OF TRIAL, OF PHOTOGRAPHS TAKEN ON THE MORNING THE DEFENSE PLANNED TO REST, WERE PREJUDICIAL AND DEPRIVED DEFENDANT OF FAIR TRIAL, THUS WARRANTING THAT DEFENDANT'S CONVICTION BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

II. STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENT CONSTITUTED PROSECUTORIAL MISCONDUCT, PREJUDICED DEFENDANT AND WARRANT REVERSAL OF DEFENDANT'S CONVICTION (Not Raised Below).

We agree with the arguments posited in Point I and, therefore, reverse and remand for a new trial. And, although not necessary to our decision, we briefly comment on Point II.

I

Defendant argues the trial judge abused his discretion in allowing rebuttal in the form of photographs of defendant's backyard and the surrounding area that were admitted through and described by Grace's additional testimony.

In particular, the prosecutor sought to elicit this evidence to respond to testimony about a space in the fence used by Grace to enter defendant's yard:

MR. CALVIELLO: The . . . nine or ten photos of the fence line – the majority of which focus on the actual hole in the fence.

In addition, . . . to the limited testimony regarding the fence – and . . . in the eyes of the child victim who recalled the fence, who utilized that hole in the fence, and who can testify not only about . . . when she realized it was originally cut, then . . . the modest alteration they did to it later on . . . , and then later on when there was . . . the arrest.

And, in fact, [Grace] can give us the three stages and it's depicted in the photos . . . by virtue of the difference in the fence. . . .

But, Judge, there's additional relevance of usefulness of these photographs, which I think the jury will benefit from. For instance, they'll get to see the tree lines and they'll know in the spring and summer, when these trees are in bloom, the very limited view that there is from [Grace's] house of [defendant's] backyard. Again, another subject of very extensive debate, particularly, on the defense side.

In addition, Judge, the doghouse that was testified to. It's still in existence in the defendant's backyard – the size of it – which is fair for consideration – the placement of it now, which has since . . . been moved.

. . . .

[It] [i]s a fairly good photograph of the size of that doghouse and where it is today and where it was at the time of the incident in question.

Although he acknowledged the State's "right to bring in rebuttal evidence," defense counsel objected to this "eleventh hour" evidence, observing the need for any such evidence should have been sooner realized; indeed, as counsel repeatedly pointed out to the trial judge, the case had previously been tried but resulted in a mistrial when the jury could not reach a verdict. He argued that if photographs were truly needed to respond to the defense's theory that the area where some of the alleged incidents occurred was not secluded – and it was not therefore logical or believable that defendant would sexually abuse the child in a clear and open area – the State should have recognized that need long before the last day of testimony in the second trial on this indictment.

In addition, defense counsel argued that because the charged events had "happened three, four, five, maybe six years ago," the idea that the newly-minted photographs would present an accurate picture for the jury of the yard as it appeared many years earlier – particularly, in light of the intervening growth of trees and shrubbery in the area, and the changed location of the dog house and a truck – was preposterous and, therefore, the admission of the photographs would tend to confuse the jury.

Defense counsel urged the prejudicial impact of the prosecutor's last minute offer of this evidence:

MR. STRATIS: We have rules that this [c]ourt lives by. . . . The discovery process is one by which I'm entitled to photographs in advance.

I'd like to see on his exhibit list where he requested or suggested that he's going to bring in photographs. Perhaps, [if he had], I would have gotten a professional photographer to go out.

Maybe he would have sat in [A.C.'s] kitchen and taken photographs from every angle. Maybe I want a picture from [defendant's] backyard. Maybe I want pictures. . . .

I am entitled to these photographs as part of the exhibit list that should have been given to me before trial number one. At a minimum, it should have been given to me before trial number two. It hasn't been done.

[The prosecutor] knows my closing argument is about the lack of physical evidence and he wants to bring in [an] array of photographs to show the jury – or to suggest to them that, yes, I've got photographs.

Defense counsel also asserted the prejudicial nature of the late offer of evidence – "pictures mean a lot to a jury," they are "something they can hold on to . . . [and] see." And he argued prejudice in the timing of the offer because these photographs, which undercut the defense argument about the prosecution's lack of tangible evidence, would be the last thing the jury would see come into evidence.

These were all valid reasons for the exclusion or limitation of the rebuttal testimony, all of which were further amplified by the unusual circumstance – the surprising fact that the State did not sooner photograph the area in order to provide the jury with pictures to go with testimony it had already heard. The issue on appeal has been confounded by the confusing colloquy among the prosecutor, defense counsel and the judge regarding the State's offer and the defendant's concerns. And, despite a lengthy discussion,⁵ the record lacks a clear expression of the judge's reasoning for allowing the rebuttal evidence; indeed, we only know the judge granted the prosecutor's application because Grace was called to the stand and questioned about most of the photographs taken that morning. Our review of the issue, therefore, has been disserved or greatly clouded because the judge failed to explain why he permitted the admission of this evidence.  See Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

To be sure, the admissibility of rebuttal evidence rests in the trial judge's sound discretion.  State v. Beard, 16 N.J. 50, 59 (1954); see also State v. Sturdivant, 31 N.J. 165, 178 (1959) (recognizing the trial judge is vested with "considerable discretion" in determining whether to permit rebuttal evidence), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed.2d 873 (1960); State v. Menke, 25 N.J. 66, 71 (1957) (observing "the exercise of that discretion will not be interfered with in the absence of mistaken use thereof"). In this case, a proper exercise of that discretion required an examination of three circumstances: the reason for the prosecution's failure to offer the evidence in the State's case-in-chief; the materiality of the evidence; and how defendant was prejudiced, which was described by the Menke Court as "the extent, if any, to which the defendant suffered greater damage than would have been imposed if the evidence had been offered at the proper time."  See Menke, supra, 25 N.J. at 71.⁶

Here, as we have observed, the case was tried on an earlier occasion. The jury could not then agree on a verdict. But, as a consequence, both sides gained a full understanding of the proofs that would be offered; accordingly, there were no surprises presented by defendant's evidence during the second trial. The State should have had a clear understanding of a need for the evidence that it did not offer until seeking the right to present rebuttal evidence. Although the record does not suggest the prosecution deliberately withheld an offer of photographs of the backyard so as to disadvantage defendant, the delay is so inexplicable that it can certainly be said that the prosecution's actions were reckless. The State must have understood that the defense theory included an assertion that whatever might occur in the yard would be visible to a number of potential witnesses in the neighborhood, thereby suggesting the child was not credible in asserting that the abuse occurred in the yard. Accordingly, we agree with defendant that the timing of the offer was highly suspicious.

The prejudice to defendant is also undeniable. Photographs, as the Supreme Court has recognized, possess a "persuasive representational nature."  See Brenman v. Demello, 191 N.J. 18, 30 (2007); see also State v. Moore, 122 N.J. 420, 466 (1991); State v. Smith, 27 N.J. 433, 449 (1958). Moreover, these photographs – presented in dramatic eleventh hour fashion – constituted the last tangible evidence presented to the jury.

And the prejudice was enhanced by the intervening years and the changes to the property's appearance from the time of the alleged events to the date the photographs were taken.⁷ This undisputed circumstance not only presented a potential for confusing the jury's understanding of the testimony about what may or may not have occurred in the yard years earlier, but also constituted a basis for excluding the photographs as improperly authenticated. In this latter regard, the Supreme Court has held that to authenticate a photograph, the proponent must demonstrate that

(1) the photograph is an accurate reproduction of what it purports to represent; and (2) the reproduction is of the scene at the time of the incident in question, or, in the alternative, the scene has not changed between the time of the incident in question and the time of the taking of the photograph.

[State v. Wilson, 135 N.J. 4, 15 (1994); see also State v. Joseph, 426 N.J. Super. 204, 220 (App. Div.), certif. denied, 212 N.J. 462 (2012).]

Although Grace testified the photographs accurately depicted the yard and other fixtures in the yard as they appeared on the date she testified, her direct testimony also demonstrated the many substantial changes to the area that we have already pointed out. The judge made no findings on these questions despite defense counsel's zealous assertions along these lines. Because there was no dispute about the substantial changes to the area between the time of the alleged offenses and the day the photographs were taken, the judge should have sustained defendant's objections.

The fact that the other evidence presented a close case for the jury to decide, the State's dramatic, last-minute and highly suspect presentation of these photographs was clearly capable of producing an unjust result.

II

Although not necessary to our decision in light of the above, in his second point defendant claims his right to a fair trial was prejudiced by the prosecutor's summation, in which he argued that some of defense counsel's arguments were "[b]y and large . . . downright repulsive."⁸ We agree this was an improper comment. As our Supreme Court has held, improper remarks in a summation will not always be deemed prejudicial because in many situations the "[f]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made."  State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001).

The prosecutor's role in the criminal justice system is not to seek convictions but to ensure justice is done; the prosecutor must, therefore, refrain from employing improper methods calculated to produce wrongful convictions.  Id.at 587; State v. Rivera, 437 N.J. Super. 434, 443 (App. Div. 2014). One such improper method is disparagement because a prosecutor's expression about the bona fides of the accused's arguments may tend, "in the minds of jurors[,] [to] . . . add the weight of the prosecutor's official and personal influence and knowledge to the probative force of the evidence adduced."  State v. Thornton, 38 N.J. 380, 398 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed.2d 1039 (1963). Although prosecutors possess considerable leeway to make vigorous and forceful contentions, they may not "cast[] unjustified aspersions on the defense or defense counsel."  State v. Nelson, 173 N.J. 417, 461 (2002); see alsoState v. Smith, 167 N.J. 158, 177 (2001). The prosecutor exceeded the bounds of proper advocacy when he stated to the jury that defendant's arguments were largely "downright repulsive."

Defense counsel did not object, giving rise to application of the plain-error standard of review. Because we reverse on other grounds, however, we need not decide whether the prosecutor's improper comment was capable of producing an unjust result.

Reversed and remanded for a new trial. We do not retain jurisdiction.

1 It is not clear why the appeal was not commenced until 2012, when defendant was required to seek and obtain leave to file a notice of appeal out of time. It further appears defendant has already served his prison sentence, but because he is not a citizen he remains incarcerated on an immigration detainer.

2 Grace's mother testified that defendant "treated [Grace] like he would treat any other child[,] [and she] didn't see anything wrong with the way they were interacting with each other." She acknowledged that it was "fair to say that [she] did not see any of the events" alleged.

3 Grace testified in general that there were approximately twenty instances – only eight of which were specifically described – in which defendant improperly touched her. She acknowledged defendant never made direct contact with her vagina, he only touched or pinched her there through her clothing.

4 The other witnesses were Grace's mother, a police detective who interviewed Grace, an expert who testified about child abuse sexual accommodation syndrome, and the male and female physicians who met with and examined Grace before the investigation leading to defendant's indictment. These other witnesses provided no independent evidence of the alleged crimes. For example, the prosecutor acknowledged in his opening statement that the physicians would not provide "evidence of any physical injury as a result of the abuse" and Grace's physical complaints were "very likely [] the onset of her menstrual cycle."

5 The argument consists of approximately 100 single-spaced transcript pages. The transcript is not always illuminating; most of the argument consists of the two attorneys interrupting each other as they pressed their positions.

6 In other words, the prejudice factor does not relate to whether "the additional evidence is harmful" to the defendant but whether the defendant has taken action since the prosecution rested that placed the defendant in a disadvantageous position in attempting to respond to the evidence offered in rebuttal, for example, whether "the defendant had excused his witnesses who would have been used to rebut the new evidence offered."  Menke, supra, 25 N.J. at 71.

7 For example, Grace pointed out numerous differences between what the photographs depicted and the appearance of the same area when the alleged events occurred. Those differences included: a new wooden fence; vines that were "usually cut" on earlier occasions had been permitted to grow along the fence; the doghouse, in which one of the alleged events occurred, had changed locations; a truck that factored into another alleged event was not in the same location; a bush along the property line had grown larger; and a swing set on the property of Grace's family was not in the same location.

8 Defendant also complains of the less severe assertion in the summation that the law allows a child victim to take the stand and "to be subjected to a[n] aggressive, at times, and antagonistic cross examination[.]"